attachment 1: nw regional director’s analysis of … · attachment 1: nw regional director’s...

ATTACHMENT 1: NW REGIONAL DIRECTOR’S ANALYSIS OF WHETHER

SAMISH WERE UNDER FEDERAL JURISDICTION IN 1934

of 32

In assessing whether the Samish Indian Nation (“Samish Nation” or “Samish” or “Nation”) were

under federal jurisdiction in 1934, I considered the voluminous submissions of the Samish

Nation in favor of its application1 and those of the Swinomish Indian Tribal Community

(“SITC”) opposing it.2 I also considered the record of evidence compiled by the Office of

Federal Acknowledgment (“OFA”) in considering the Nation’s petition for federal

acknowledgment under 25 C.F.R. Part 83 (“Part 83”);3 the findings of fact and conclusions of

law issued in litigation and administrative proceedings related thereto;4 the various court

1 Samish submitted a number of submissions in regards to whether the Samish where under federal jurisdiction in

1934. The major submissions include, but are not limited to the following: Memorandum, Dorsay & Easton, LLP to

Mary Anne Kenworthy, Office of the Regional Solicitor, Department of the Interior (Dec. 7, 2011); Memorandum,

Dorsay & Easton, LLP to Douglas W. Wolf, Office of the Solicitor, Department of the Interior (Jun. 8, 2012);

Memorandum, Dorsay & Easton, LLP to Mary Anne Kenworthy, Office of the Regional Solicitor, Department of

the Interior (Jun. 26, 2012); Memorandum, Dorsay & Easton, LLP to Mary Anne Kenworthy, Office of the Regional

Solicitor, Department of the Interior (Feb. 28, 2013); Memorandum, Dorsay & Easton, LLP to Mariel Combs,

Office of the Solicitor, Department of the Interior (Mar. 11, 2013); Chris Friday, Ph.D., “Samish Indian Nation

History in Light of the Carcieri Decision: Expert Historian’s Report” (Jun. 30, 2013) (“Friday Report”);

Memorandum, Dorsay & Easton, LLP to James V. DeBergh, Office of the Solicitor, Department of the Interior (Jun.

6, 2016) (letter in response to SITC letter dated April 13, 2016 from Emily Haley); Memorandum, Dorsay &

Easton, LLP to James V. DeBergh, Office of the Solicitor, Department of the Interior (Jun. 6, 2016) (letter in

response to SITC letter dated April 13, 2016 from James Janetta); Memorandum, Dorsay & Easton, LLP to Jessie D.

Young, Office of the Regional Solicitor, Department of the Interior (Aug. 10, 2017); Memorandum, Dorsay &

Easton, LLP to Jessie D. Young, Office of the Regional Solicitor, Department of the Interior (Oct. 31, 2017).

2 SITC submitted a number of submissions in regards to whether the Samish where under federal jurisdiction in

1934. The major submissions include, but are not limited to the following: Letter, Ziontz, Chestnut, Varnell, Berley

& Slonim to Bureau of Indian Affairs (“BIA”) Northwest Regional Director Stanley M. Speaks (Apr. 24, 2012);

Letter, Swinomish Indian Tribal Community to BIA Northwest Regional Director Stanley M. Speaks (Oct. 20,

2014); Letter, Ziontz Chestnut to BIA Northwest Regional Director Stanley M. Speaks (Nov. 2, 2015); Letter,

Ziontz Chestnut to BIA Northwest Regional Director Stanley M. Speaks (Nov. 24, 2015); Letter, Ziontz Chestnut to

BIA Northwest Regional Director Stanley M. Speaks (Mar. 9, 2016); Letter, Ziontz Chestnut to BIA Northwest

Regional Director Stanley M. Speaks (Jun. 21, 2016); E. Richard Hart, “Analysis of the Methodology of a Report of

Dr. Chris Friday” (Nov. 21, 2016); Response to Friday Report, Memorandum from Marc Slonim, Ziontz Chestnut to

James DeBergh, Office of the Solicitor, Department of the Interior (Nov. 28, 2016); Memorandum from Theresa

Trebon, SITC Records Manager and Archivist (Nov. 28, 2016).

3 See Memorandum, Recommendation and Summary of Evidence for Proposed Finding Against Federal

Acknowledgment of the Samish Indian Tribe, Pursuant to 25 C.F.R. 83 (formerly Part 54), from Dep. Asst. Sec’y –

Indian Affairs (Operations) to Assistant Secretary – Indian Affairs (Oct. 27, 1982) (“1982 Proposed Finding”);

Memorandum, Recommendation and Notice of Final Determination Against Federal Acknowledgment of the

Samish Indian Tribe Pursuant to 25 C.F.R. 83, from Dep. Asst. Sec’y – Indian Affairs (Tribal Services) to Assistant

Secretary – Indian Affairs (Jan. 30, 1987) (“1987 Final Determination”); U.S. Dep’t of the Interior, Bureau of Indian

Affairs, Final Determination That the Samish Indian Tribe Does Not Exist as an Indian Tribe, 52 Fed. Reg. 3709

(Feb. 5, 1987); U.S. Dep’t of the Interior, Assistant Secretary – Indian Affairs, Final Determination To

Acknowledge the Samish Tribal Organization as a Tribe (Nov. 8, 1995) (“1995 Final Determination”); U.S. Dep’t of

the Interior, Bureau of Indian Affairs, Final Determination for Federal Acknowledgment of the Samish Tribal

Organization as an Indian Tribe, 61 Fed. Reg. 15,825 (Apr. 19, 1996). This also includes material compiled and

maintained by the Office of Federal Acknowledgment in its review of Samish’s federal acknowledgment petition. In

addition, I reviewed records related to Greene v. Babbitt, Dkt. No. Indian 93-1 (Aug. 31, 1995) (Torbett, ALJ)

(“Greene Administrative Proceedings”).

4 Greene Administrative Proceedings, App. B, ¶¶ 1-3. This includes documents in boxes identified as Greene v.

Babbitt in the Office of Federal Acknowledgement, 1951 Constitution Avenue, NW, Washington, D.C. 20240; and



of 32

decisions addressing the Nation’s off-reservation treaty fishing rights under the 1855 Treaty of

Point Elliott;5 the Nation’s eligibility for federal acknowledgment under Part 83;6 and the

Nation’s eligibility for statutory and treaty benefits based on its federally acknowledged status.7

Additionally, I reviewed a submission by the Upper Skagit Indian Tribe addressing Samish treaty

rights but found that this submission did not directly address the Nation’s jurisdictional status in

1934 directly.8 For the reasons explained below, I conclude that the evidence demonstrates that

the Nation was “under federal jurisdiction” in 1934 and that the Department has the authority to

acquire the Campbell Lake Parcel in trust for the Nation under Section 5 of the Indian

Reorganization Act (“IRA”).9

I. BACKGROUND

The Samish Indian Nation is located in northern Puget Sound in Washington State. The

aboriginal Samish were one of the Coast Salish tribes of Puget Sound, with territory centered on

Guemes and Samish Island but including neighboring islands and portions of the mainland shore

to the east.10 By the 1840s, most Samish occupied a single large village on Samish Island. In the

early 1850's, extensive white settlement of the Puget Sound area began.

Treaty of Point Elliott

The history of federal interactions with the Samish Nation is long and complex. It begins in

1855, when the Samish and other tribes entered the Treaty of Point Elliot with the United States.

The Treaty of Point Elliott was one of several treaties negotiated by Washington Territorial

Governor Isaac Stevens by which with Pacific Northwest tribes ceded land to the United States

exhibits submitted by the Samish Nation and the Department’s expert reports by Dr. Barbara Lane submitted in the

Washington litigation. See infra n. 4.

5 United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974) (“Washington I”), aff’d, 520 F.2d 676 (9th Cir.

1975), cert denied sub nom Washington Reef Net Owners Association v. United States, 423 U.S. 1086 (1976);

United States v. Washington, 476 F. Supp. 1101 (W.D. Wash. 1979) (“Washington II”), aff’d, 641 F.2d 1368 (9th

Cir. 1981) cert. denied, 454 U.S. 1143 (1982); United States v. Washington, 394 F.3d 1152 (9th Cir. 2005)

(“Washington III”); United States v. Washington, 593 F.3d 790 (9th Cir. 2010) (en banc) (“Washington IV”).

6 Greene v. Lujan, No. C89-645Z, 1992 WL 533059 (W.D. Wash. Feb. 25, 1992), aff’d sub nom. Greene v. United

States, aff’d sub nom. Greene v. Babbitt, 64 F.3d 1266 (9th Cir. 1995) (“Greene I”); Greene v. United States, 996

F.2d 973 (9th Cir. 1993) (“Greene II”); Greene v. Babbitt, 943 F. Supp. 1278 (W.D. Wash. 1996) (“Greene III”).

7 Samish Indian Nation v. United States, 58 Fed. Cl. 114 (2003), rev’d in part, den. in part, 419 F.3d 1355 (Fed. Cir.

2005) (“Samish II”).

8 Letter, Upper Skagit Indian Tribe to BIA Northwest Regional Director Stanley Speaks (Mar. 9, 2017).

9 25 U.S.C. § 5108 (formerly 25 U.S.C. § 465). The compilers of the U.S. Code have editorially reclassified section

5 of the IRA, along with other sections of the IRA. This analysis will use the new designations or the section of the

original statute.

10 The following information reflects the general conclusions of the Department in the 1982 Proposed Finding, the

1987 Final Determination, and the 1995 Final Determination. While the district court vacated the 1987 Final

Determination as a whole, these findings in particular were never challenged. The 1995 Final Determination set out

additional findings of fact.



of 32

but retained various rights.11 Though not expressly mentioned in the Treaty, the United States

District Court for the Western District of Washington in 1979 confirmed that the Samish were

parties thereto and were included under the signature of Chow-its-hoot, a Lummi leader who

signed on behalf of the Samish and other northern bands.12

Prior to treaty negotiations, Samish villages were located on Samish Island, Guemes Island,

Fidalgo Island, and Lopez Island, in the Puget Sound area of Washington State. The first two

locations were exclusively Samish.13 In 1875, the Samish village at Samish Island was replaced

by a village established at New Guemes, which was maintained until around 1905. Some Samish

from, or associated with, this village moved to the Swinomish and Lummi Reservations

beginning before 1900 and continuing into the 1920’s. The reservation families continued to be

somewhat distinct as a Samish community even after moving to the reservations,

notwithstanding their social and political participation in the communities which emerged on

those reservations. After 1905, other Samish from the village at New Guemes became part of a

small Indian settlement at Ship Harbor, which was already largely Samish. This settlement

persisted until approximately 1930. Still other Samish families did not move to the reservations.

From the late 19th-century to the present, these non-reservation families continued in significant

contact with the reservation families, even though they had married non-Indians and lived

elsewhere.14 A portion of these reservation and non-reservation Samish have continued to exist

as a tribe under a distinct political leadership, including the off-reservation families, from the

early 1900s to the present.15 As further explained below, federal officials provided services to

and exercised jurisdiction over the Samish on- and off-reservation populations into the twentieth-

century.

As late as the 1960s, the Samish appeared on an unofficial list prepared by the BIA of tribes with

which the agency “had dealings.”16 Although “not intended ‘to be a list of federally recognized

11 1995 Final Determination at 5; United States v. Washington, 384 F.Supp. 312, 331-32 (W.D. Wash. 1974); Samish

II, 419 F.3d at 1359, citing United States v. Washington, 641 F.3d 1368, 1373–74 (9th Cir. 1981).

12 Washington II, 476 F.Supp. at 1106.

13 Samish v. U.S., 6 Ind. Cl. Comm. Docket 261, 174 (March 11, 1958); Barbara Lane, Identity, Treaty Status and

Fisheries of the Samish Nation of Indians, 6–7 (“Lane Samish Report”). Dr. Barbara Lane was one of the

Department’s expert witnesses who drafted numerous reports in the Washington I and Washington II litigation. The

federal district court in Washington II found the Lane Samish Report “highly credible.” Washington II, 459 F. Supp.

at 1059.

14 1995 Final Determination at 5, 8.

15 Id. at 8.

16 Greene Administrative Proceedings, App. B, ¶ 1.



of 32

tribes as such,’”17 a 1966 draft version of the list included the Samish Tribe.18 That same year,

the BIA listed the Samish Tribe as a tribe not organized under Section 16 of the IRA in a

memorandum on “Tribal Organizations: Indian Reorganization Act; Oklahoma Indian Welfare

Act; Other Organizations; Unrecognized.”19 Also in 1966, the Acting Superintendent of the

Western Washington Agency wrote to Harold C. Hatch, Chairman of the Samish Tribe,

regarding the names and positions of the Samish Tribe’s tribal officers, requesting that the

Samish Tribe inform the BIA of any changes to their tribal leadership.20 For reasons that remain

unclear, however, a 1969 version of the BIA’s list omitted the Samish Nation,21 and in the early

1970s federal officials began referring to the Samish Tribe as not being federally recognized.22

Cognizant of this, in 1972, the Samish Tribe filed its first petition for federal acknowledgment,

but the government did not respond to its request.23

Washington I & II

The United States filed suit against the State of Washington in 1970 seeking a declaratory

judgment concerning off-reservation treaty fishing rights of Washington State tribes under the

1855 Treaty of Point Elliott.24 In 1974, Judge Hugo Boldt issued his landmark decision in

Washington I, which determined the off-reservation fishing rights of tribes’ party to the Treaty of

Point Elliott. The Samish Indian Nation was not a party to Washington I, but thereafter

intervened to assert off-reservation treaty fishing rights. In Washington II, Judge Boldt concluded

that while the Samish was a party to the Treaty of Point Elliott, because they were not federally

recognized as an Indian governmental or political entity, they were not successors in interest to

the off-reservation treaty fishing rights of the Treaty Samish.25 On appeal, the Ninth Circuit

17 Samish II, 419 F.3d at 1359 (Fed. Cir. 2005), citing Samish Tribe of Indians v. United States of America, 6 Ind. Cl.

Comm. 169 (1958); see also Greene Administrative Proceedings, App. B, ¶ 1 (BIA official who testified at the

Samish recognition proceeding stated that the list was not intended to be to be a list of federally recognized tribes,

but “it may have evolved into that…under Congressional pressure to make clearer distinctions between recognized

and non-recognized tribes”).


19 Memorandum from BIA, Tribal Operation Assistant Patricia Simmons to BIA, Chief Tribal Governmental

Section of BIA (Jul., 21 1966), and accompanying list.

20 Letter from John B. Benedetto, Acting Superintendent Western Washington Agency to Harold C. Hatch,

Chairman Samish Tribe (January 5, 1966).

21 The Court in Greene III, 943 F. Supp. at 1288 n.13, reinstated the three contested findings of the Administrative

Law Judge, including the finding that the omission of the Samish Tribe from the unofficial 1969 list was “neither

based on actual research, nor was it intended to be used as the basis for determining which Indian groups are to be

recognized by the United States.”

22 See, e.g., Letter from Superintendent of the Western Washington Agency to Samish Chairman Margaret Greene

(Jan. 21, 1972).

23 Samish II, 419 F.3d at 1360.

24 Washington I, 384 F. Supp. at 327. The original lawsuit included seven tribes, and later seven more tribes joined.

25 Washington II, 476 F. Supp. at 1106.



of 32

reversed Judge Boldt’s holding that only recognized tribes may exercise treaty rights, 26 but the

divided panel found that Judge Boldt’s other factual findings surrounding Samish supported the

denial of relief.27

Petition for Federal Acknowledgment under 25 C.F.R. Part 83

While the Nation’s motion to intervene in Washington II was pending, the Department issued

regulations governing the procedures by which tribes can obtain federal acknowledgment.28

Following its appeal of Judge Boldt’s decision in Washington II, the Nation submitted a new

petition for federal acknowledgment pursuant to the Department’s Part 83 regulations.29 The

Nation submitted 190 exhibits as part of its petition – 146 more than it had proffered in

Washington II and about half of which dated from between 1850 and 1940.30 In 1987, however,

the Assistant Secretary – Indian Affairs (“Assistant Secretary”) denied the Nation’s petition for

federal acknowledgment after determining that the Nation had failed to meet three of Part 83’s

seven mandatory acknowledgment criteria.31

Greene Litigation

The Nation challenged the Assistant Secretary’s determination, alleging violations of due

process.32 In 1992, a federal district court agreed and found that the hearing afforded to the

Nation on its petition for federal acknowledgement did not comport with constitutional principles

of due process.33 The district court ordered the BIA to vacate its denial determination and hold a

new hearing that conformed to the requirements for a formal adjudication under the

Administrative Procedures Act.34 The Nation and the United States agreed that an administrative

26 United States v. Washington, 641 F.2d 1368, 1371 (9th Cir. 1981).

27 Id. at 1373; see also id. (Canby, J.) (dissent) (agreeing federal recognition not essential to exercise of treaty rights

but rejecting that district court had resolved the determinative question of the Nation’s continuity or provided means

for doing so).

28 43 Fed. Reg. 39,361 (Aug. 24, 1978). The Part 83 regulations were originally classified at 25 C.F.R. Part 54. The

Department amended the mandatory acknowledgment criteria in 1994, 59 Fed. Reg. 9,280 (Feb. 25, 1994), and

again in 2015. 80 Fed. Reg. 37,862 (Jul. 1, 2015).

29 Samish II, 419 F.3d at 1360.

30 See Appendix A Quantitative Comparison found in Samish’s federal acknowledgment records. See infra n. 4. This

document also states that there were an additional 100 exhibits to be submitted as an addendum in April 1981. The

Nation submitted a further 173 sets of tribal minutes; 590 family ancestry charts; and BIA family trees from 20

principal families.

31 1987 Final Determination. The Assistant Secretary had issued a proposed finding against federal

acknowledgement in 1982. See Samish Indian Tribe; Proposed Findings Against Federal Acknowledgment, 47 Fed.

Reg. 50,110 (Nov. 4 1982).

32 Greene I, 64 F.3d 1266.

33 Id. Because the District Court vacated the Department’s decision denying Samish’s recognition, I reject any

reliance on the findings in the 1982 Proposed Findings or the 1987 Final Determination to the extent inconsistent

with either ALJ Torbett’s decision, the 1995 Final Determination, or the decision in Greene III.

34 Id.



of 32

law judge (“ALJ”) would conduct an administrative hearing to prepare findings of fact and a

recommendation for the Assistant Secretary on whether the Nation met the mandatory

acknowledgment requirements of Part 83 based on the existing administrative record and

testimony produced at the hearing.35

The district court denied a motion by the Tulalip Tribes to intervene in the administrative

proceedings on the grounds that federal acknowledgment of the Nation would not dilute the

Tulalip Tribe’s adjudicated treaty fishing rights, a determination upheld by the Ninth Circuit.36

Recognizing that the inquiries into treaty rights and federal acknowledgment are similar, the

court held that each determination “serves a different legal purpose and has an independent legal

effect.”37 While nonrecognition can result in the loss of statutory benefits, it can have “no impact

on vested treaty rights,” and by the same token a tribe “need not assert treaty fishing rights to

gain federal recognition.”38

In extensive hearings lasting nine days before ALJ David L. Torbett in 1994, the Nation and the

United States argued whether the Nation met the Part 83 mandatory acknowledgment criteria. In

an exhaustive opinion issued the following year,39 ALJ Torbett concluded “there is no question”

that a preponderance of evidence supported the Nation “as to each and every element contained

in the recognition regulations,” and that it is “reasonable and believable that the Samish have

continually existed as an Indian tribe up until this very day.”40 In 1995, the Assistant Secretary

35 Greene Administrative Proceedings at 1–2.

36 Greene II, 996 F.2d at 978.

37 Id.

38 Id. at 977.

39 ALJ Torbett’s decision in the Greene Administrative Proceedings consisted of: (1) a summary of the evidence; (2)

a discussion and recommendation; (3) an appendix discussing the burden of proof; and (4) an appendix enumerating

205 proposed findings. The Ninth Circuit concluded that ALJ Torbett “conducted a thorough and proper hearing on

the question of the Samish’s tribal status, and made exhaustive proposed findings of fact after considering all the

evidence and the credibility of the witnesses.” Greene III, 943 F. Supp. at 1288. The Ninth Circuit agreed, finding

that ALJ Torbett had “carefully considered and weighed all the evidence, including the testimony of the parties’

witnesses, and made findings consistent with the evidence. Id. at 1289.

40 Greene Administrative Proceedings at 19. The criteria that was used at the time to determine if Samish should be

recognized under the provisions of 25 C.F.R. Part 83 are as follows: (a) A statement of facts establishing that the

petitioner has been identified from historical times until the present on a substantially continuous basis, as

“American Indian,” or “aboriginal”…; (b) Evidence that a substantial portion of the petitioning group inhabits a

specific area or lives in a community viewed as American Indian and distinct from other populations in the area, and

that its members are descendants of an Indian tribe which historically inhabited a specific area; (c) A statement of

facts which establishes that the petitioner has maintained tribal political influence or other authority over its

members as an autonomous entity throughout history until the present; (d) A copy of the group's present governing

document, or in the absence of a written document,. a statement describing in full the membership criteria and the

procedures through which the group currently governs its affairs and its members; (e) A list of all known current

members of the group and a copy of each available former list of members based on the tribe's own defined criteria.

The membership must consist of individuals who have established, using evidence acceptable to the Secretary,

descendancy from a tribe which existed historically or from historical tribes which combined and functioned as a

single autonomous entity…; (f) The membership of the petitioning group is composed principally of persons who



of 32

ultimately issued a final determination that the Nation met the mandatory acknowledgment

criteria in Part 83.41

Washington III

Following federal acknowledgment, the Nation in 2002 moved to reopen the previous denial of

its off-reservation treaty fishing rights.42 Pursuant to Fed. R. Civ. P. 60(b), the Nation argued that

federal acknowledgment constituted an “extraordinary circumstance” that justified re-examining

Washington II. The district court denied the Nation’s motion, concluding that “a tribe’s

recognition, or nonrecognition, has no impact on whether it may exercise treaty rights.”43 The

Nation appealed and the Ninth Circuit reversed and remanded in Washington III, holding that

while federal recognition is not necessary for an exercise of treaty rights, it is sufficient because

federal acknowledgment is “determinative” of tribal organization, the issue on which the Nation

was denied treaty fishing rights in Washington II.44

On remand the district court again denied the Nation’s motion,45 finding that to do otherwise

would conflict with the Ninth Circuit’s decisions in Greene holding that federal recognition had

no effect on treaty rights.46 If recognition did not determine treaty status, then the Nation’s

acknowledgment could “not of itself justify” granting the Nation’s motion.

Washington IV

The Nation again appealed. The Nation’s appeal brought into focus “[t]he nature and severity” of

a conflict between the Ninth Circuit’s Greene and Washington lines of authority.47 This

prompted the Court to take up the matter en banc even before a panel decision could issue.48

are not members of any other North American Indian tribe; (g) the petitioner is not, nor are its members, the subject

of congressional legislation which has expressly terminated or forbidden the Federal relationship.”

41 Supplemental Final Determination for Federal Acknowledgment of the Samish Tribal Organization as an Indian

Tribe, 61 Fed. Reg. 26,922 (May 29, 1996). The Assistant Secretary issued the 1995 Final Determination as a result

of the Greene Administrative Proceedings. The Nation challenged the 1995 Final Determination for omitting certain

findings of fact by ALJ Torbett, arguing that the findings were “necessary to the tribal recognition process.” Greene

III, 943 F. Supp. at 1287. Because of ex parte communications between the government’s attorneys and the

Assistant Secretary “ma[de] a remand inappropriate,” the district court reinstated the findings itself. Id. at 1288-89.


43 Washington III, 394 F.3d at 1156, citing United States v. Washington, No. CV 70–09213, Subproceeding No. 01–

2, slip op. at 13, 16 (W.D. Wash. Dec. 19, 2002). The district court also noted that the Nation had not alleged that

the Washington II proceeding was fundamentally unfair or that the Nation had been prevented from adducing

evidence in support of its claim. Id.

44 Id. at 1161.

45 United States v. Washington, 2008 WL 6742751 (W.D. Wash. Sept. 2, 2008), aff’d, 593 F.3d 790 (9th Cir. 2010)

(en banc).

46 Id.

47 Washington IV, 593 F.3d at 798.

48 Id. at 798 n. 9.



of 32

Overruling its decision in Washington III, the Ninth Circuit this time upheld the district court’s

denial of the Nation’s motion. The en banc opinion in Washington IV overruled Washington III,

which held that federal acknowledgment could warrant reopening a prior denial of treaty rights,

and upheld the denial of the Tribe’s 60(b) motion.

Washington IV held that any inconsistency between the Assistant Secretary’s decision to

acknowledge the Nation and the factual findings adjudicated in Washington II did not in itself

provide sufficient grounds to re-open Washington II.49 The Ninth Circuit relied on the fact that

the Nation had had both an incentive and an opportunity to present to Judge Boldt the evidence it

later provided to the Department under Part 83.50 Re-opening Washington II based on evidence

that could have been presented earlier could have “a particularly severe impact” on tribes whose

treaty fishing rights had already been adjudicated.51 The Ninth Circuit agreed with the district

court that concerns for finality “loom[ed] especially large” because of the detailed regime for

regulating fishing rights established by Washington over the years.52

Washington IV also reaffirmed that treaty litigation and recognition proceedings were

“fundamentally different” and had no effect on one another.53 Federal acknowledgment

establishes a ‘government-to-government relationship’ between a recognized tribe and the

United States and is “a ‘prerequisite to the protection, services, and benefits of the Federal

government available to Indian tribes by virtue of their status as tribes.’” 54 Acknowledgment

“brings its own obvious rewards,” not least of which is “‘the eligibility of federal money for

tribal programs, social services and economic development.’”55 Given this fundamental

distinction, the Ninth Circuit concluded that “the fact of recognition cannot be given even

presumptive weight in subsequent treaty litigation.”56 The Nation did not seek a writ certiorari

from the Ninth Circuit’s decision in Washington IV, and today concedes that the issues litigated

there are closed.57


50 Id., citing Washington v. United States, 2008 WL 6742751 at *22.

51 United States v. Washington, 593 F.3d 790, 800 (9th Cir. 2010) (en banc).

52 Id. The district court had expressed concerns for finality and for disrupting the court’s on-going management of

the Washington adjudication, whose docket included over 19,000 entries. See United States v. Washington, 2008

WL 6742751 at *21 (W.D. Wash. Sept. 2, 2008) (unreported).

53 United States v. Washington, 593 F.3d at 800.

54 Id. at 801, citing 25 C.F.R. § 83.2.

55 Id., citing Greene v. Babbitt, 996 F.2d 973, 978 (9th Cir. 1993).

56 Id.

57 Memorandum Response, Craig J. Dorsay, Esq., to James V. DeBergh, Attorney-Advisor, Dep’t. of the Interior,

Office of the Solicitor at 10 (Jun. 3, 2016) (Nation precluded from relitigating off-reservation treaty fishing rights).



of 32

Prior Fee-to-Trust Determinations

Since its federal acknowledgment in 1996, the Nation has purchased land and buildings in Skagit

County, Washington, for various administrative purposes. In 2006, the Department acquired

property known as the Campbell Lake Homeland in trust for the Nation pursuant to Section 5 of

the IRA.58 At the time, the Department interpreted the IRA’s first definition of “Indian” as only

requiring a tribal applicant to be federally recognized at the time trust land was acquired.59 In

2009, however, the United States Supreme Court (“Supreme Court”) construed the IRA’s first

definition of “Indian” as requiring tribal applicants also to have been “under federal jurisdiction”

at the time of the IRA’s passage in 1934.60 Since the Supreme Court’s decision in Carcieri the

Department has not placed any other lands into trust for the Nation.

II. STANDARD OF REVIEW

A. Carcieri

The first definition of “Indian” applies to “all persons of Indian descent who are members of ay

recognized Indian tribe now under Federal jurisdiction.”61 In Carcieri v. Salazar, the Supreme

Court considered the ordinary meaning of the term “now,” its sense within the context of the

IRA, as well as contemporaneous Departmental correspondence,62 and concluded that the phrase

“now under the federal jurisdiction” unambiguously referred to tribes “that were under the

federal jurisdiction of the United States when the IRA was enacted in 1934.”63 The majority did

not, however, address the meaning of the phrase “under federal jurisdiction,” however,

concluding that the parties had conceded that the Narragansett Tribe was not under federal

jurisdiction in 1934.64

B. Sol. Op. M-37029

In 2014, the Department’s Solicitor issued a signed M-Opinion interpreting the statutory phrase

“under federal jurisdiction” for purposes of determining whether an Indian tribe can demonstrate

that it was under such jurisdiction in 1934 for purposes of Section 5 of the IRA.65 Because a

signed M-Opinion is binding on Department offices and officials until modified by the Secretary,

58 See Letter, Acting Superintendent, Puget Sound Agency, BIA to Ken Hansen, Chairman, Samish Indian Nation

(July 20, 2001); Letter, Northwest Regional Director BIA to Rick Landers, General Manager, Samish Indian Nation

(September 2004).

59 See Carcieri v. Salazar, 555 U.S. 379, 381 (2009) (“Carcieri”). Carcieri did not address the Secretary’s authority

to acquire land in trust for groups that fall under other definitions of “Indian” in Section 19 of the IRA.

60 Id. at 379.

61 25 U.S.C. § 5129.

62 Carcieri, 555 U.S. at 388–90.

63 Id. at 395.

64 Id. at 382, 395.

65 The Meaning of ‘Under Federal Jurisdiction’ for Purposes of the Indian Reorganization Act, Op. Sol. Interior M-

37029 (Mar. 12, 2014) (“Sol. Op. M-37029”).



of 32

the Deputy Secretary, or the Solicitor, I must rely on Sol. Op. M-37029 to guide our analysis

here.66

“Recognized Indian Tribe”

Sol. Op. M-37029 concluded that the phrase “recognized Indian tribe” in the IRA’s first

definition of “Indian” is ambiguous because “recognition” has historically been understood in

two senses, one a cognitive or quasi-anthropological sense, the other a more formal legal sense

connoting a political relationship with the United States.67 The latter evolved into the notion of

“federal acknowledgment” in the 1970s.68 Having identified this statutory ambiguity, the

Solicitor interpreted Section 19 as requiring that a tribe be “recognized” at the time the IRA is

applied, for example, when the Secretary decides to take land into trust for its benefit.69 The

courts have upheld the Solicitor’s interpretation.70

“Under Federal Jurisdiction”

Sol. Op. M-37029 concluded that neither the text of the IRA nor its legislative history defined or

otherwise clearly established the meaning of “under federal jurisdiction,” which required the

Department to interpret the phrase in order to continue to exercise the authority delegated to it

under Section 5 of the IRA.71 Federal acknowledgment in today’s political sense is not

synonymous with being ‘under federal jurisdiction’ for purposes of Carcieri, and the absence of

66 U.S. Dep’t of the Interior, 209 Departmental Manual 3.2(A)(11). The D.C. Circuit and the Ninth Circuit have both

recently upheld the framework embodied in Sol. Op. M-37029 as reasonable. See Confederated Tribes of the Grand

Ronde Cmty. of Or. v. Jewell, 830 F.3d 552 (D.C. Cir. 2016) (“Cowlitz”); Cty. of Amador v. United States Dep’t of

the Interior, 872 F.3d 1012, 1025 (9th Cir. 2017), reh’g en banc den. (Jan. 11, 2018), petition for cert pending, No.

17-1432 (U.S. 2018).

67 Sol. Op. M-37029 at 23; see also Felix Cohen, Handbook of Federal Indian Law at 268 (1942 ed.); Carcieri, 555

U.S. at 400 (Souter, J.) (dissent) (noting majority opinion does not foreclose giving recognition and jurisdiction

separate content, and pointing out that whether the United States was ignorant of a tribe in 1934 would not preclude

the tribe from having been under federal jurisdiction). The historical record produced during the Nation’s federal

acknowledgment proceedings demonstrates that the Nation has been “cognitively” recognized on a substantially

continuous basis from treaty times through the present.

68 Id.

69 Sol. Op. M-37029 at 25.

70 Confederated Tribes of the Grande Ronde Cmty. of Or. v. Jewell, 75 F. Supp. 3d 387 (D.D.C. 2014), aff’d, 830

F.3d 552 (D.C. Cir. 2016), cert. den. sub nom. Citizens Against Reservation Shopping v. Zinke, 137 S.Ct. 1433

(2017); County of Amador v. Jewell, 136 F. Supp. 3d 1193 (E.D. Cal. 2015); aff’d, 872 F.3d 1012, 1021 (9th Cir.

2017) (concluding de novo that the expression “recognized Indian tribe” as used in Section 19, “when read most

naturally, includes all tribes that are currently – that is, at the moment of the relevant decision – ‘recognized’ and

that were ‘under Federal jurisdiction’ at the time the IRA was passed”); cert. filed, No. 17-1432 (U.S. Apr. 11,

2018); Cent. N.Y. Fair Bus. Ass'n v. Jewell, 2015 WL 1400384 (N.D.N.Y. Mar. 26, 2015) (not reported), aff’d, 673

Fed. Appx. 63 (2d Cir. 2016), cert den., 137 S.Ct. 2134 (2017).

71 The Secretary receives deference to interpret statutes that are consigned to his administration. See Chevron v.

NRDC, 461 U.S. 837, 842–45 (1984); United States v. Mead Corp., 533 U.S. 218, 229–31 (2001); see also Skidmore

v. Swift, 323 U.S. 134, 139 (1944) (holding that agencies merit deference based on “specialized experience and

broader investigations and information” available to them).



of 32

a formal government-to-government relationship with the United States in 1934 would not

preclude the possibility that a tribe was under federal jurisdiction in 1934.72 To address the

ambiguity for purposes of implementing Section 5 of the IRA, the Solicitor established a two-

part inquiry for determining whether a tribe was “under federal jurisdiction” in 1934.

The first part examines whether evidence from the tribe’s history, at or before 1934 demonstrates

that it was under federal jurisdiction. This step looks to whether the United States had, in 1934 or

earlier, taken an action or series of actions—through a course of dealings or other relevant acts

for or on behalf of the tribe—that establish or generally reflect federal obligations, duties,

responsibility for or authority over the tribe by the Federal Government.73 Some federal actions

in and of themselves demonstrate that a tribe was under federal jurisdiction at some identifiable

period in its history, such as the treaties or the implementation of specific legislation (e.g, votes

conducted under Section 18 of the IRA). In other cases a variety of federal actions viewed in

totality may demonstrate that a tribe was under federal jurisdiction.74 Such evidence may include

guardian-like actions undertaken on behalf of a tribe or a continuous course of dealings with a

tribe. It could also include, but is not limited to, the negotiation of treaties; federal approval of

contracts between a tribe and non-Indians; enforcement of the Trade and Intercourse Acts

(Indian trader, liquor laws, and land transactions); the education of Indian students at BIA

schools; and the provision of health or social services to a tribe. It may also include actions by

Office of Indian Affairs officials administering the affairs of Indian reservations or implementing

federal legislation. Evidence submitted as part of federal acknowledgment process of Part 83

may also be highly relevant,75 As might other types of evidence not referenced in Sol. Op. M-

37029 that also demonstrate federal obligations, duties to, acknowledged responsibility for, or

power or authority over a particular tribe.

Where a tribe establishes that it was under federal jurisdiction before 1934, the second part of the

inquiry determines whether that jurisdictional status remained intact in 1934. The Federal

government’s failure to take any actions towards, or on behalf of a tribe during a particular time

period does not necessarily reflect a termination or loss of the tribe’s jurisdictional status.76

Evidence of executive officials disavowing legal responsibility in certain instances cannot, in

72 U.S. Dep’t of the Interior, Bureau of Indian Affairs, Record of Decision, Trust Acquisition of, and Reservation

Proclamation for the 151.87-acre Cowlitz Parcel in Clark County, Washington, for the Cowlitz Indian Tribe at 104

(Apr. 2013) (“Cowlitz ROD”) (Tribe’s admission that it lacked formal political relationship with United States in

1934 does not necessarily also mean it was not under federal jurisdiction in 1934). As the Ninth Circuit has also

noted, neither does the lack of federal acknowledgment prevent the exercise of treaty rights. United States v.

Washington, 641 F.2d 1368 (9th Cir. 1981).

73 Evidence unambiguously demonstrating that a tribe was under federal jurisdiction in 1934 will eliminate the need

to examine the tribe’s history before 1934.

74 See, e.g., Cowlitz ROD.

75 Sol. Op. M-37029 at 25.

76 See Memorandum, Associate Solicitor, Indian Affairs to Assistant Secretary, Indian Affairs, October 1, 1980,

Request for Reconsideration of Decision Not to Take Land in Trust for the Stillaguamish Tribe (“Stillaguamish

Memorandum”).



of 32

itself, revoke jurisdiction absent express congressional action,77and there may be periods where

federal jurisdiction exists but is dormant.78 The absence of probative evidence that a tribe’s

jurisdictional status was terminated or lost prior to 1934 would strongly suggest that such status

was retained in 1934.79

The Solicitor concluded, and courts have affirmed,80 that the two-part inquiry for determining

whether a tribe was “under federal jurisdiction” in 1934 is consistent with the IRA’s remedial

purpose and with the Department’s post-enactment practices in implementing the statute.81

C. Effect of Washington II

Before assessing the Samish Indian Nation’s jurisdictional status in 1934, I must address the

relevance of the 1979 decision in Washington II to this inquiry.

Swinomish Indian Tribal Community argues that Washington II precludes the Department from

determining that the Nation was “under federal jurisdiction” in 1934 for purposes of the IRA.82

As noted above, Washington II, inter alia, adjudicated the off-reservation treaty fishing rights of

certain Washington tribes that were party to the Treaty of Point Elliott. At the time the Nation

intervened in that litigation, it had not yet received federal acknowledgment. Based on its lack of

acknowledgment at that time, Judge Boldt in Washington II concluded that the Nation was not a

treaty tribe “in the political sense” holding off-reservation treaty fishing rights for itself or its

members.83

SITC argues that because Washington II concluded that the Nation is not a successor to the

Treaty of Point Elliott, it cannot be a successor entity to the treaty Samish. SITC further contends

that the Department cannot rely on evidence of federal interactions with descendants of the treaty

77 It is a basic principle of federal Indian law that tribal governing authority arises from a sovereignty that predates

establishment of the United States, and that “[o]nce recognized as a political body by the United States, a tribe

retains its sovereignty until Congress acts to divest that sovereignty.” Cohen’s Handbook Of Federal Indian Law §

4.01[1] (2012 ed.) (citing Harjo v. Kleppe, 420 F. Supp. 1110, 1142–43 (D.D.C. 1976)).

78 See Stillaguamish Memorandum at 2 (noting that enduring treaty obligations maintained federal jurisdiction, even

if the federal government did not realize this at the time); United States v. John, 437 U.S. 634, 653 (1978) (in

holding that federal criminal jurisdiction could be reasserted over the Mississippi Choctaw reservation after almost

100 years, the Court stated that the fact that federal supervision over the Mississippi Choctaws had not been

continuous does not destroy the federal power to deal with them).

79 Sol. Op. M-37029 at 20.

80 See supra n. 73. See also Citizens for a Better Way v. United States DOI, 2015 WL 5648925 (E.D. Cal. Sep. 23,

2015) (not reported), aff’d sub. nom. Cachil Dehe Band of Wintun Indians v. Zinke, 889 F.3d 584 (9th Cir. 2018);

Stand Up for Cal.! v. United States DOI, 204 F. Supp. 3d 212 (D.D.C. 2016), 879 F.3d 1177 (D.C. Cir. 2018), reh’g

en banc den. (Apr. 10, 2018); Shawano County, Wisconsin v. Acting Midwest Reg’l Dir., 53 IBIA 62 (2011); Village

of Hobart, Wisc. v. Acting Midwest Reg’l Dir., Bureau of Indian Affairs, 57 IBIA 4 (2013).

81 Sol. Op. M-37029 at 20.

82 Letter, Ziontz Chestnut to BIA Northwest Regional Director Stanley M. Speaks (Mar. 9, 2016).

83 Washington II, 476 F. Supp. at 1111.



of 32

Samish for purposes of the “under federal jurisdiction” inquiry.84 Though SITC concedes that

Samish participated in the Treaty of Point Elliott,85 it claims “there is simply no evidence of

Federal actions that establish, or that generally reflect, Federal obligations or duties to,

responsibility for, or authority over” the Nation at any time, up to and including 1934.86

SITC’s arguments neglect the fundamental distinction between treaty rights and statutory

benefits derived from acknowledgment, a distinction the Ninth Circuit discussed and elaborated

upon in both the Washington and Greene lines of authority.87 Those authorities distinguish

between inquiries into succession for purposes of treaty rights and inquiries into continuous

tribal existence for purposes of federal acknowledgment under the mandatory criteria of Part

83.88 While each inquiry may look to the same historical record, each must evaluate it according

to fundamentally distinct legal purposes. In order to establish treaty fishing rights, a tribe must

show that (1) it comprises a group of Indians descended from a treaty signatory and (2) that it has

maintained an organized tribal structure.89 By contrast, a group of Indians seeking formal

acknowledgment must satisfy the seven mandatory requirements set forth in the Part 83

regulations.

Neither the Federal acknowledgment nor the “under federal jurisdiction” inquiry requires a tribe

to show that it descended from a treaty tribe.90 In fact, the Department has determined that a tribe

was under federal jurisdiction in 1934 even though they were not a party to any ratified treaty. In

issuing a determination relating to the Cowlitz Indian Tribe’s (“Cowlitz”) application for in trust,

the Secretary found that the government’s course of dealings with the tribe dated from failed

treaty negotiations in 1855.91 On appeal to the U.S. Court of Appeals for the District of

Columbia Circuit, the court found that “[i]t makes sense to take treaty negotiations into account,

84 See, e.g., Letter, Ziontz Chestnut to BIA Regional Director Stanley M. Speaks at 49–54 (Mar. 9, 2016).

85 Letter, Ziontz Chestnut to BIA Northwest Reg. Dir. Stanley M. Speaks at 5 (Mar. 9, 2016) (“we agree that Samish

Indians participated in the treaty”). See also Letter, Ziontz Chestnut to BIA Northwest Reg. Dir. Stanley M. Speaks

(Nov. 24, 2015).

86 Letter, Ziontz Chestnut to BIA Northwest Reg. Dir. Stanley M. Speaks at 4 (Mar. 9, 2016).

87 The Washington line of cases addressed the Nation’s off-reservation treaty fishing rights under the Treaty of Point

Elliott. The Greene line of cases addressed the effects of federal acknowledgment on statutory benefits and treaty

rights available to the Nation. To resolve a conflict between these lines of authority, the Ninth Circuit in Washington

IV held that the Nation’s 1996 federal acknowledgment did not warrant re-visiting the 1979 decision in Washington

II, which had denied the Nation off-reservation fishing rights under the Treaty of Point Elliott. See also Samish

Indian Nation v. United States, 58 Fed. Cl. 114, (2003), rev’d in part and denied in part, 419 F.3d 1355 (Fed. Cir.

2005).

88 United States v. Washington, 19 F. Supp. 3d 1317, 1374 (W.D. Wash. 2000) (“The standard for treaty rights and

for tribal recognition, while similar, are not identical, with each determination serving a different legal purpose and

having an independent legal effect”) (internal quotes and brackets omitted), citing Greene II, 996 F.2d at 976.

89 See Washington I, 520 F.2d at 693; Washington II, 641 F.2d at 1372.

90 See 25 C.F.R. § 83.11 (criteria for acknowledgment as a federally recognized Indian tribe); 25 C.F.R. § 83.12

(criteria for previously federally acknowledged petitioner).

91 See Cowlitz, 830 F.3d at 562.



of 32

as one of several factors reflecting authority over a tribe, even if they did not ultimately produce

agreement.”92 The Court ultimately found that the Cowlitz—even though they were not a party

or successor in interest to any treaty tribe—were under the jurisdiction of the federal government

beginning at the time of treaty negotiations.93

Although the Ninth Circuit affirmed the decision in Washington II, it rejected Judge Boldt’s

holding that only federally recognized tribes may exercise treaty rights, finding it “clearly

contrary to…and…foreclosed by well-settled precedent.”94 The Ninth Circuit explained that non-

recognition had no impact on vested treaty rights, though it might result in the loss of statutory

benefits.95

The Ninth Circuit revisited the difference between treaty rights and statutory benefits flowing

from recognition several years later when reviewing the district court decision in Greene denying

the Tulalip Tribe’s motion to intervene in the Nation’s administrative acknowledgment

proceedings.96 Though it conceded that the issue was the Nation’s claims to federal

acknowledgment and off-reservation treaty fishing rights, the Tulalip Tribe argued that both

inquiries raised nearly identical issues and were largely based on the same factual record.97 And

although the Ninth Circuit agreed that the historical inquiries were similar,98 it added that each

“serves a different legal purpose” and has an “independent legal effect.”99 Affirming the analysis

of Washington II, the Ninth Circuit again held that while non-recognition might result in the loss

of statutory benefits, it could have no effect on vested treaty rights.100 By the same token, “the

Samish need not assert treaty fishing rights” to gain federal acknowledgment, and “might

document repeated identification by federal and state authorities … sometime after or

independent of the 1855 Treaty [of Point Elliott].”101 Critically, the court found that if the

Samish Indian Nation obtained federal acknowledgment, it would “still have to confront the

decisions in Washington I and II” before it could claim off-reservation treaty fishing rights.102

An en banc panel of the Ninth Circuit revisited the distinction once more when resolving the

conflict of authority arising out of the Greene and Washington line of cases. As described earlier,

92 Id. at 564.

93 Id.

94 United States v. Washington, 641 F.2d 1368, 1371 (9th Cir. 1981).

95 Id.


97 Id. at 976.

98 Id.

99 Id.

100 Id. at 977, citing United States v. Washington, 641 F.2d at 1371.

101 Greene II, 996 F.2d at 977.

102 Id.



of 32

Washington IV reaffirmed that treaty rights litigation and recognition proceedings were

“fundamentally different” and had no effect on one another.103 In a unanimous decision, the en

banc panel held that Federal acknowledgment establishes a ‘government-to-government

relationship’ between a recognized tribe and the United States; is “a ‘prerequisite to the

protection, services, and benefits of the Federal government available to Indian tribes by virtue

of their status as tribes’”;104 and “brings its own obvious rewards,” not least of which is “‘the

eligibility of federal money for tribal programs, social services and economic development.’”105

Precisely because of this fundamental distinction, the Ninth Circuit concluded that “the fact of

recognition cannot be given even presumptive weight in subsequent treaty litigation.”106 As

noted, the Nation has conceded that the issues it litigated in Washington II were closed by the

Ninth Circuit’s decision in Washington IV.107

Pursuant to Carcieri, the Department must undertake the “under federal jurisdiction” inquiry to

determine eligibility for statutory benefits made available to recognized tribes by Section 5 of the

IRA. Because determining the Nation’s jurisdictional status as of 1934 is necessarily a historical

inquiry, it is an analysis not dissimilar to those for determining federal acknowledgment and

treaty rights and may rely on the same historical record. However, the inquiry required by

Carcieri serves a different legal purpose having an independent legal effect.108

Sol. Op. M-37029 determined that the historical record prepared for a tribe pursuant to the

federal acknowledgment process may be relied on and “highly relevant” in demonstrating that a

tribe was under federal jurisdiction in 1934.109 Part 83’s mandatory acknowledgment criteria

require petitioners to demonstrate, among other things, that they have been identified as an

American Indian entity since 1900 and that they have comprised a distinct community

maintaining political authority over their members “from historic times to the present” on a

substantially continuous basis.

As described above, the Ninth Circuit rejected the claim that the Department’s review of the

Nation’s petition for federal acknowledgment was precluded by Washington II.110 And although

the court acknowledged the historical roots of each inquiry were “probably the same,”111 it


104 Id. at 801, citing 25 C.F.R. § 83.2.

105 Id., citing Greene II, 996 F.2d at 978.


107 Memorandum Response, Craig J. Dorsay, Esq., to James V. DeBergh, Attorney-Advisor, U.S. Dep’t of the

Interior, Office of the Solicitor at 10 (Jun. 3, 2016) (Nation precluded from relitigating off-reservation treaty fishing

rights).

108 Greene II, 996 F. 2d at 976.

109 Sol. Op. M-37029 at 25.

110 Greene I, 64 F. 3d at 1270.

111 Id.; U.S. v. Washington, 641 F.2d 1368 (9th Cir. 1981).



of 32

concluded that “the legal issue and the factual issue, as well as the stakes, are very different.”112

The historical scope of the “under federal jurisdiction” inquiry necessarily overlaps with the

federal acknowledgment inquiry. Both focus on events taking place in or before 1934, and Part

83 requires petitioners to document a substantially continuous existence from historical times to

the present. As a result, the federal acknowledgment record generally will include evidence for

the same period. And while satisfying Part 83’s mandatory criteria cannot in and of itself mean

that a tribe was “under federal jurisdiction” in 1934 for purposes of Carcieri, the Part 83 record

may nonetheless include evidence relevant to the Carcieri inquiry.113

For these reasons I conclude that Washington II is not determinative of the question whether the

Nation was under federal jurisdiction in 1934, and does not preclude the Department from

relying on the record submitted by the Nation under Part 83.

III. ANALYSIS

A. Federal Jurisdiction before 1934

The Samish Indian Nation came under federal jurisdiction by 1855 when the United States

negotiated and entered into the Treaty of Point Elliott.114 As Federal officials considered the

Samish a separately recognized tribe through the early 1900s,115 and as there is no evidence in

the record to establish that its recognition was ever extinguished, I conclude that the Nation and

its members remained under federal jurisdiction in 1934.

1. Treaty of Point Elliott

Between 1854 and 1855, federal treaty negotiators asked many Indian tribes and bands in the

territories occupied by the “Lummis and other northern bands”116 in western Washington—

including the Samish—to enter a treaty council with the United States.117 Leading up to treaty

112 Greene I, 64 F. 3d at 1270.

113 See, e.g., 25 C.F.R. § 83.7(a)(1) (identification as Indian entity by federal authorities); § 83.7(e) (federal records

as evidence of descent from historical tribe); § 83.8 (acceptable evidence of previous federal acknowledgment).

114 Washington II, 476 F. Supp. at 1106–07; Greene Administrative Proceedings, App. B, ¶ 67; 1995 Final

Determination at 6. As discussed in more detail below, I rely on the Treaty of Point Elliott and surrounding

negotiations solely as evidence reflecting the establishment of federal jurisdictional authority over Samish for the

limited purposes of the “under federal jurisdiction” inquiry, which assesses eligibility for statutory benefits available

to recognized tribes.

115 1995 Final Determination at 16; see also 1987 Final Determination at 29.

116 Greene Administrative Proceedings, App. B, ¶ 60 (finding that the Samish Nation is a Coast Salish tribe of

Indians whose aboriginal territory was bounded by the southeast tip of San Juan Island, Deception Pass, Padilla Bay,

Samish Bay, Chuckanut Bay, and the northern end of Lopez Island); Barbara Lane, Identity, Treaty Status and

Fisheries of the Samish Tribe of Indians (January 15, 1975) (“Lane Samish Report”).

117 Friday Report at 12. Though some portions of the Friday Report are not relevant to the “under federal

jurisdiction” inquiry, those that are relevant are well-reasoned and supported by the historical record. The

Swinomish Tribe argued that the Friday Report “provides no evidence to support the claim that Samish were under

federal jurisdiction in 1934” and separately challenged its methodology. See Marc Slonim, Esq., “Response to

Friday Report” (Nov. 28, 2016); “Analysis of the Methodology of a Report of Dr. Chris Friday” by E. Richard Hart

(Nov. 21, 2016). However the Swinomish Tribe’s submissions do not discredit the evidence on which our



of 32

negotiations with the tribes in Western Washington, in March 1854, George Gibbs, the federal

treaty commission’s secretary, wrote specifically about the Samish as a separate and distinct

group of Indians.118

Six months before the signing of the Point Elliott Treaty, the Acting Commissioner of Indian

Affairs instructed Territorial Governor Isaac Stevens to send a map identifying the location of

the tribes, bands, and treaty reservations once treaty negotiations concluded.119 Governor Stevens

forwarded this map in 1857, which identified “Samish” as a party to the Point Elliott Treaty and

showed the location of the Samish Indians around the Fidalgo Island Reservation (also referred

to as the Perry’s Island Reservation and which is now the present day Swinomish

Reservation).120 Stevens’ map included a table stating that Stevens planned to set aside the

Lummi Reservation for the Lummi, Samish, and Nooksack.121 In his letter of transmittal,

Governor Stevens himself vouched for the general accuracy of the map and the Indian statistics

stated within it.122 In further demonstrating that the treaty commission considered Samish a party

to the Treaty of Point Elliott, Governor Stevens’ treaty map also reflects federal obligations,

duties, responsibility for or authority over the Samish Nation.

On December 10, 1854, the treaty commission met to discuss tribal “probable reserves,” which

included “one on Samish.”123 When the treaty commission arrived at Muckl-te-oh, or Point

Elliott, on January 16, 1855, Gibbs recorded the presence of 113 Samish at the treaty council

grounds.124 In the draft of the Treaty of Point Elliott made on January 22, 1855, Gibbs included

the “Samish” in the listing of tribes for which the duly authorized “Chiefs headmen and

determination relies, but instead draw different inferences and conclusions from that same evidence. In addition,

they take issue with evidence that is not relevant to our inquiry and on which our determination does not rely, for

which reason we do not consider it.

118 See Lane Samish Report at 4–5.

119 Barbara Lane, Identity and Treaty Status of the Nooksack Indians (November 28, 1974) (“Lane Nooksack

Report”), App. A.

120 Lane Samish Report at 10.

121 See 1856 Map of the Indian Nations and Tribes of the Territory of Washington by Isaac Stevens. A copy of this

map can be found at Exhibit 2842 of the Friday Report.

122 Lane Nooksack Report at 11; see also Letter, William McCluskey to W.F. Dickens (Jan. 23 1923) (over sixty

years later, the Farmer in Charge on the Swinomish reservation wrote to the Tulalip Superintendent W.F. Dickens

that two Samish Indians, Mrs. Blackinton and Mrs. Julia Barkhousen, were among the last surviving individuals

present at the Point Elliot Treaty signing.

123 Lane Nooksack Report at 12. We note here that the phrase “one of Samish” is not clear on its face, yet it probably

meant either one on Samish Island, a location with a Samish village (see Lane Samish Report at 7), or one on

Samish River, a location associated with Samish Indians (see Lane Samish Report at 5).

124 Lane Samish Report at 13; see also Washington II, 476 F. Supp. at 1106 (“Official estimates of the number of

Samish at treaty times varied from about 98 to about 150 persons.”).



of 32

delegates”125 would sign the treaty. Although not a separately named signatory, the United States

grouped the Samish with one or more signatories for purposes of executing the treaty.126 A

common practice at the time, Governor Stevens and other treaty commissioners grouped

different tribes and bands together under certain head “chiefs” or treaty signers for practical

purposes of negotiating and finalizing a treaty.127 Many members of the Samish Nation today

trace their lineages to the Samish who were alive or present at the signing of the Treaty of Point

Elliott.128

SITC asserts that participation in a ratified treaty cannot establish that a tribe was recognized and

under federal jurisdiction in 1934.129 This assertion is incorrect. The Department has long

considered treaty relations a significant factor in establishing whether a tribe was under federal

jurisdiction,130 and the Solicitor has determined that a tribe may be “under federal jurisdiction” in

1934 as a result of a treaty with the United States that was still in effect.131 Treaties “implicitly

established federal jurisdiction over tribes,” and could do so even where treaty negotiations were

unsuccessful.132 Sol. Op. M-37029 explains that treaties negotiated by the President and ratified

125 See Lane Samish Report at 12. The draft treaty also demonstrates that the United States government believed that

the Samish and Lummi were not the same tribe, because Gibbs put “Samish” on the same line as the “Lummi” but

separated the two by a comma.

126 Washington II, 476 F. Supp. at 1106 (“The 1855 Samish were not named in the treaty but were assigned, for the

purpose of including them in the treaty, to the Lummi signer, Chow-its-hoot, who signed the treaty for the Lummi

and the other northern bands.”). The record indicates that other treaty signers may have also signed for the Samish.

See, e.g., Duwamish, 79 Ct. Cl. at 530 (“Noo-wha-ha” chief signed for Samish); Greene Administrative

Proceedings, App. B, ¶ 65 (Noowhaha chief Pateus signed for Samish). It is clear from the record that one, if not

more than one, treaty signatories signed for the Samish.

127 U.S. v. Washington, 520 F.2d 676, 682, 688 (9th Cir. 1975) (western Washington “ ‘tribes’ ” somewhat

arbitrarily constructed by Governor Stevens for convenience in negotiating treaties, noting that in many cases each

tribe was an aggregate of smaller communities or villages).

128 See, e.g., Letter from William McCluskey, Farmer of the Swinomish Indian Reservation, to Mr. W.F. Dickens,

Tulalip Superintendent (Jan. 29, 1923) (stating that John Davis and wife, Mrs. Blackinton, and Mrs. Julia

Barkhousen were present at the Point Elliott Treaty signing); see also Washington II, 476 F. Supp. at 1105–06

(Samish Indian Nation “is composed primarily of persons who are descendants in some degree of Indians who in

1855 were known as Samish Indians and who were party to the Treaty of Point Elliott.”).

129 Letter, Ziontz Chestnut to BIA Northwest Reg. Dir. Stanley M. Speaks at 2, n.1 (Nov. 24, 2015).

130 Sol. Op. M-37029 at 14, n. 90 (citing Felix S. Cohen, HANDBOOK OF FEDERAL INDIAN LAW 271 (1942 ed.)

(listing treaty relations as one factor relied upon by the Department in establishing tribal status). See also U.S. Dep’t

of the Interior, Bureau of Indian Affairs, Record of Decision: Trust Acquisition of, and Reservation Proclamation for

the 151.87-acre Cowlitz Parcel in Clark County, Washington, for the Cowlitz Indian Tribe at 79 (Dec. 2013)

(“Cowlitz ROD”) (treaty negotiations “demonstrate that the Federal Government clearly regarded the [Tribe] as a

sovereign entity capable of engaging in a formal treaty relationship with the United States”) (available at

https://www.bia.gov/sites/bia.gov/files/assets/public/oig/pdf/idc2-056427.pdf); Cowlitz, 830 F.3d at 564.

131 Sol. Op. M-37029 at 4, citing Carcieri, 555 U.S. at 399 (Breyer, J.); id. at 20.

132 Sol. Op. M-37029 at 14. See also Sol. Op. M-36759 (Nov. 16, 1967) (discussing treaty relations between the

Federal Government and the Burns Paiute Tribe as evidence of tribal status even though such relations did not result

in a ratified treaty).

https://www.bia.gov/sites/bia.gov/files/assets/public/oig/pdf/idc2-056427.pdf



of 32

by the Senate under the Treaty Clause establish on-going legal obligations of the United States to

treaty tribes. Once a government-to-government relationship is established between a tribe and

the United States, the absence of probative evidence of termination or loss of a tribe’s

jurisdictional status suggests that such status is retained.133 This is consistent with Justice

Breyer’s view in Carcieri that a tribe could be “under federal jurisdiction” in 1934 because of a

treaty “in effect in 1934.”134 The Treaty of Point Elliott, executed in 1855, remains in effect

today.

2. 1855 to 1900

Between 1855 and 1900, federal officials continued to treat Samish as under federal jurisdiction.

Article 7 of the Treaty of Point Elliott gave Federal officials authority to relocate the Samish to

the Treaty reservations,135 and federal officials took actions to do the same, repeatedly reporting

that the Samish were under their “charge” and “supervision.” In 1856, Governor Stevens

appointed Edmund Claire Fitzhugh to oversee Indians in the general vicinity of Bellingham Bay

and in his September 1856 report to the Agent for Indians of Puget Sound District, he estimated

that there were 98 Samish “under [his] supervision”:

From our position, being far removed from the seat of war, I have never had these

Indians on any reserve, and consequently have not been obliged to feed them—as

all their former opportunities for procuring sustenance were still open to them.

The Lummas have been principally residing at a fishery called Sky-lak-sen and

also at the mouth of the Lumma River—the Samish at the river whence they

derive their name, and the fisheries adjacent . . .136

In the winter of 1856–57, the federal government began relocating the Lummi and Samish to the

Bellingham Bay reservation (present day Lummi reservation).137 Fitzhugh reported to Governor

Stevens in December 1856 that “I have them now nearly all at the encampment—all of the

Samish having moved up & joined the Lummas, very near my place. I can now give them more

133 See Memorandum from Associate Solicitor, Indian Affairs to Assistant Secretary, Indian Affairs, Request for

Reconsideration of Decision Not to Take Land in Trust for the Stillaguamish Tribe at 2 (Oct. 1, 1980) (enduring

treaty obligations maintain federal jurisdiction even where federal government remains unaware at the time).

134 Sol. Op. M-37029 at 4, citing Carcieri, 555 U.S. at 399.

135 12 Stat. 927. Article 7 of the Treaty states in part that “The President may hereafter, when in his opinion the

interests of the Territory shall require and the welfare of the said Indians be promoted, remove them from either or

all of the special reservations hereinbefore make to the said general reservation, or such other suitable place within

said Territory as he may deem fit, on remunerating them for their improvements and the expenses of such removal,

or may consolidate them with other friendly tribes or bands; and he may further at his discretion cause the whole or

any portion of the lands hereby reserved, or of such other land as may be selected in lieu thereof, to be surveyed into

lots, and assign the same to such individuals or families as are willing to avail themselves of the privilege, and will

locate on the same as a permanent home…” (emphasis added).


137 Lane Samish Report at 13–14 (“By December [1856] the situation had changed. Evidently during the winter of

1856–57 all of the Lummi and Samish were on the reservation at Bellingham Bay.”).



of 32

attention, than I could, when they were scattered over such an extent of country.”138 In 1857,

Fitzhugh again reported that he was in charge of the “Neuk-sack, Samish, and Lummi” along

with “a portion of the Neukwers and Sia-man-nas, who live in the back country on the lakes and

streams adjacent.”139 A year later, Fitzhugh reported the “Lummi, Neukfsack, and Samish

Nations” under his “superintendency” numbering “some fifteen hundred, men, women, and

children included.”140

In 1859, agent B.F. Shaw reported to the Commissioner of Indian Affairs that the Lummi,

Nooksack, “Samish, and Stick”141 Indians were “part of his charge” and that Governor Stevens

had assigned the “Neukfsacks and Samish…[that] live on the Neukfsak and Samish Rivers” to

the newly opening Lummi reservation. However, he further reported that such tribes were “much

attached to their homes, and do not wish to leave them” and “until such time as the reservation

can present such superior advantages over their present homes that it cannot fail to convince

them of the advantage to be gained by the change in homes.”142

Despite federal efforts to relocate the Samish to one of the Treaty reservations, the

majority of Samish soon left143 to continue to live in Samish villages on land surrounding

the Samish River and the Padilla, Samish, and Bellingham Bays, which the Samish had

traditionally occupied prior to the Treaty of Point Elliott.144 The Samish had little

incentive to move to or stay on any of the four established Treaty reservations because

their traditional villages provided ample land to support them, and white settlement of

Samish territory was comparatively slow.145 Additionally, Samish believed that they

would eventually obtain their own, separate Treaty reservation,146 though some Samish

continued to return to the Bellingham Bay reservation to collect their treaty annuities.147

138 Id. at 13–14.

139 Friday Report at 19.

140 Id.

141 Stick (or Stick Samish), Noowhaha (or Noo-wha-ha), and Upper Samish are names used to identify the same

group of Indians. See Greene Administrative Proceedings, App. B, ¶ 63 (“According to Dr. [Wayne] Suttles, the

Noowhaha were called “Stick” Samish, from the Chinook Jargon term for ‘forests’, or sometimes Upper Samish,

since they lived inland from the salt water Samish.”). While the Noowhaha and the Samish were at one time

different tribes, they merged before the treaty and have been one tribe since that time. This finding by ALJ Torbett

was originally rejected by the Department but reinstated by the court. See Greene III, 943 F. Supp. at 1288–89.



144 Id.; see also 1995 Final Determination.

145 See Greene Administrative Proceedings, App. B, ¶¶ 69, 70, 72–73.

146 Greene Administrative Proceedings, App. B, ¶ 68; see also 1995 Final Decision at 28.

147 Id.



of 32

A limited number of federal agents available to oversee the Samish’s affairs also contributed to

the Nation’s movements to and from the Treaty reservations. In 1863, for example, Indian Agent

Henry C. Hale reported that for the “Fidalgo Island” reservation (the present day Swinomish

Reservation), “there is no one in charge of these Indians at present” because of the dismissal of

the Assistant Farmer in Charge.148

In 1866, Christian C. Finkbonner, Indian Sub-Agent at the Lummi reservation, reported 47

Samish living on the reservation,149 a fraction of the Samish Indian population reported by

Fitzhugh ten years prior.150 In 1870, Finkbonner reported that the Samish “persistently refuse to

come and live on the Lummi reservation.”151 Nonetheless a small population of Samish lived

there during 1869 and 1870, and U.S. Army Lieutenant George D. Hill, the agent at Neah Bay,

Washington Territory, reported to the Commissioner of Indian Affairs that the Lummi

reservation was for the Lummi, Nooksack, Samish, and Squinamish tribes.152

Many Samish Indians instead continued to occupy a village on Samish Island until 1875. After a

local storekeeper shot a Samish Indian on Samish Island, however, many Samish resettled on

Guemes Island in a community referred to as the “New Guemes village.”153 This village

consisted of numerous Samish families and homes, as well as a longhouse built on adjoining

homestead allotments154 issued to Bob Kithnolatch and Sam Watchoat, two Samish Indians who

had obtained them pursuant to a provision in an 1875 appropriations act extending the benefits of

the 1862 Homestead Act to Indians.155 And although the act on its face required allottees to

prove they had abandoned tribal relationships, the longhouse built by Kithnolatch and Watchoat

on their allotments became the center of family and social life for the Samish and other

Indians.156 Many Samish families resided on the allotments up to and after 1905, when the

allotments were eventually sold to satisfy tax liabilities.

SITC argues that the Samish allotment applications provide no evidence of federal jurisdiction

over Samish if, by filling out these applications, Kithnolatch and Watchoat averred that they had

severed their tribal relations.157 However it is the acceptance of their applications pursuant to the



150 Id. at 13–14.

151 Id. at 15.


153 Lane Samish Report at 7; Greene Administrative Proceedings, App. B, ¶¶ 60, 69.

154 Id. at 7; see also Schedules of Special Census of Indians, 1880.

155 See 18 Stat. 402, 420 (1875); see also Lane Samish Report at 7.

156 Greene Administrative Proceedings, App. B, ¶¶ 73, 74, 76, 81–83. See also I Sol. Op. 732 (U.S.D.I. 1979),

“Status of Wisconsin Winnebago,” citing Solicitor’s Opinion (Mar. 6, 1937) (concluding that Indians with

homestead allotments on the public domain are eligible to organize under the IRA).

157 Letter, Ziontz Chestnut to BIA Northwest Regional Director Stanley M. Speaks at 11 (Mar. 9, 2016).



of 32

1875 appropriations act that demonstrates that the federal government recognized the Samish and

its members as being Indians under the federal government’s jurisdiction at this time.

Federal officials further exercised authority over the Samish in New Guemes Village. Though

not within any reservation boundary, federal officials sought to assert control over the Indians

living there. For example, in November 1880, Tulalip Indian Agent John O’Keane reported that

the Samish had invited Indians from all the tribes of the North West” to a “Great Potlatch or

Give Feast” on Guemes Island.158 O’Keane denied a request by “the chiefs and headmen” of the

Tulalip Reservation to attend the feast.159 Despite O’Keane’s denial, many left the Tulalip

Reservation to attend anyway, causing O’Keane to send a “detachment of Police to the Samish”

to arrest a Skagit Indian and to disrupt the celebration. The Indians “defied the Police force and

refused to give up the [Skagit] man,” forcing the police to return without accomplishing their

purpose.160 Such incidents demonstrate that whether the Samish were residing on one of the

Treaty reservations or in the off-reservation New Guemes Village built on Indian homestead

allotments, federal officials treated the Samish Indians as within their police power and under

federal jurisdiction.

Census records show that as of May 1881, at least fourteen families “of the Samish Nation” lived

on Guemes Island.161 The Table of Contents to the 1880 census, under the Tulalip Indian Agency

heading, identifies the Samish and Stick Samish162 as “Indians not on a reservation,” while

“Samish” are not identified on any of the reservations created by the Treaty of Point Elliott.163

In 1884-85, federal authorities began carrying out the allotment provisions of the Treaty of Point

Elliott for Indians on the Bellingham Bay and Perry’s Island reservations, today known as the

Lummi Reservation and Swinomish Reservation, respectively. On the Lummi reservation,

federal officials assigned allotments to approximately eighty-five Indians. On the Swinomish

reservation, the federal government allotted lands to approximately sixty-three Indians. Some

Samish Indians received allotments on these reservations, including George Barkhousen, who

received an 80-acre allotment on the Swinomish Reservation in 1884.164 And although the 1900


159 Id.

160 Id.

161 Schedules of Special Census of Indians, 1880. Microfilm publication M-1791, 5 rolls. Records of the Bureau of

the Census, 1790–2007, Records Group 29. National Archives at Washington D.C.

162 Stick Samish (also referred to as Upper Samish or Noowhaha) (supra note 144) are considered to have merged

with the Samish Nation. See also Greene III, 943 F. Supp. at 1288, n. 13 (reinstating finding that “a substantial part

of the Noowhaha tribe merged historically with the Samish.”).

163 Schedules of Special Census of Indians, 1880. Microfilm publication M-1791, 5 rolls. Records of the Bureau of

the Census, 1790-2007, Records Group 29. National Archives at Washington D.C.

164 See Friday Report at 154–55 (“…[w]hen he died in 1915, federal officials divided the allotment into three equal

portions among his heirs Audry Alice Barkhousen (or Barkhausen), Ernest George Barkhausen, and Henry Otto.”).



of 32

U.S. Census listed Barkhousen as Swinomish,165 he was in fact Samish.166 Tribal

misidentification was common during these years, and the fact that George Barkhousen was

identified as a Swinomish Indian could be simply because he owned an allotment on the

Swinomish reservation.167 I find that misidentification of George, and other Samish Indians,

should be taken for what they are: simple mistakes made by federal officials during a time when

tribal affiliation was not determinative, or necessarily important for exercising their federal

responsibilities over individual Indians or tribes.

Summary

The Department in 1982 concluded that Samish was “clearly considered in subsequent agency

reports and similar documents to have been covered by the [Treaty of Point Elliott] and to be

under the jurisdiction of the Office of Indian Affairs” through the first decade of the twentieth

century.168 During the period 1855 to 1900, federal officials reported Samish in traditional

villages in the special census of Indians; federal officials granted homestead allotments to

Samish Indians under statutes that applied only to Indians; federal officials granted to Samish

Indians allotments on the Treaty reservations; and federal officials attempted to exercise federal

jurisdiction over Samish Indians living at a traditional off-reservation village. Such evidence

demonstrates that the Federal government continued a course of dealings with the Tribe and its

members that evidenced federal obligations, duties, responsibility for, and authority over the

Samish.

B. Federal Jurisdiction through 1934

1. 1900 to 1934

The Department concluded that the village at New Guemes dissolved in the first decade of the

twentieth century as Samish residents began moving to the Lummi and Swinomish

reservations.169 Subsequent to administrative proceedings that followed a 1987 determination

that the Nation did not meet the mandatory acknowledgment criterion at 25 C.F.R. § 83.7(c), the

Department found that the Nation had maintained a distinct Samish community even after

moving to the Lummi and Swinomish reservations, and that the Samish had always maintained a

165 See 1900 U.S. Census, Skagit, Swinomish Reservation.

166 George Barkhousen was the son of Henry C. Barkhousen (white) and Julia Barkhousen (née Sehome) a Samish

Indian. See 1930 Skagit, Fidalgo Precinct (Julia Barkhousen listed as “full blood Samish”). Julia was present at the

Point Elliott Treaty grounds. See Letter, William McCluskey, Farmer of the Swinomish Indian Reservation, to Mr.

W.F. Dickens, Tulalip Superintendent (Jan. 29, 1923).

167 Misidentification could also be attributed to the fact that coastal Salish Indians (like the Samish) “reckoned

descent from important ancestors on both their mother’s side and father’s side, with the result that all kinship groups

overlapped.” See 1995 Final Decision at 27. Said another way, an individual with grandparents from four different

distinct tribes could be identified by the federal government—or self-identify—as belonging to and the right to

identify with any one of those tribes. See, e.g. Greene Administrative Proceedings, App. B, ¶ 48.

168 1982 Proposed Finding at 7 (summary evaluation of evidence showing that Nation satisfied the mandatory

acknowledgement criteria of 25 C.F.R. § 83.7(a)). 1995 Final Determination at 4 (same); 61 Fed. Reg. 15,826 (Apr.

9, 1996) (same).

1691995 Final Determination at 5.



of 32

distinct tribal political leadership since the early 1900s.170 This decision was made following a

determination that Federal officials continued to take actions evidencing the exercise of federal

authority over the Samish and its members in this period.

In 1905 numerous Samish Indians, including George Cagey and Charley (or Charlie) Edwards

applied for and received allotments on the Swinomish reservation.171 In 1916, Tulalip

Superintendent Charles Buchanan intervened on behalf of Dick Edwards, who wished to pass ten

acres of his Swinomish allotment to his daughter Katherine Scott by signing and executing a

deed.172 A November 1905 list of allottees on the Swinomish reservation created by the Tulalip

Indian Agency also shows Samish Indians receiving allotments on the reservation.173 Issuance of

allotments to Samish Indians living on the Swinomish reservation, which was established not for

the specific use of one tribe but for all the Indians of the Treaty of Point Elliott, supports a

conclusion that the Samish Nation was under federal jurisdiction at this time. Most Samish did

not, however, take allotments on the Treaty reservations. In a 1906 report concerning

Washington Indians, the Farmer in Charge at the Tulalip Reservation reported that the Samish

were among that “large portion of the Indian population of the treaty tribes, who made the treaty

with the Government at Point Elliott” who “live on no reservations, but cluster chiefly along the

valleys of the great rivers of the Sound.”174 He further reported that the river valley population of

the certain tribes, including the Samish, had been promised school facilities at that place.175

Because so many Indians who were members of tribes that had negotiated the Treaty of Point

Elliott lived off-reservation, Commissioner of Indian Affairs Cato Sells in 1913 informed Tulalip

Superintendent Charles M. Buchanan that “the jurisdiction of the Tulalip Agency” was

“extended so as to include all non-reservation Indians in Whatcom, Skagit, and Snohomish

170 Id. at 5, 9; 61 Fed. Reg. 15,825 (Apr. 9, 1996). 1987 Final Determination at 4. Though the Department initially

found “little indication of a consistently functioning Samish tribal political unit after about 1920,” it conceded that

“there was some degree of identified Samish leadership until at least 1935.” Id. at 19.

171 See Department of Commerce, Fifteenth Census of the United States: 1930 Population Schedule, Swinomish

Indian Reservation, in North La Conner District (April 2, 1930) (George Cagey is listed on the 1930 Census as

Mixed Blood Samish); Department of Commerce, Fifteenth Census of the United States: 1930 Population Schedule,

Swinomish Indian Reservation, in North La Conner District (April 8, 1930) (Charley Edwards is listed on the 1930

U.S. Census as “Full Blood Samish”). We are aware that these individuals are identified in other documents with

different tribal affiliation but we do not find that identification of Samish Indians with other tribal affiliations

necessarily determinative because identification of Indians during this time period was not always accurately

portrayed in federal documents. The 1930 Census records seems to reflect a change in federal official protocol for

census records from identifying an Indian by the reservation they resided on to actually identifying them according

to their own tribal affiliations.

172 Letter, Charles Buchanan to Commissioner of Indian Affairs (May 25, 1916).

173 Letter, Edward Bristow, Farmer in Charge to Dr. Charles Muchana, U.S. Indian Agent (Nov. 6, 1905).

174 Charles M. Buchanan, Report of Superintendent on Tulalip Reservation at 383 (Aug. 6, 1906).

175 Id.



of 32

Counties,”176 where many off-reservation Samish Indians lived.177 While Samish families that

had moved to the Swinomish or Lummi reservations were already under the jurisdiction of the

Tulalip Agency, the Commissioner’s formal acknowledgement of jurisdiction over Indians like

the off-reservation Samish demonstrates that these non-reservation Samish were also under

federal jurisdiction.178

Further, the Northwestern Federation of American Indians (“Federation”), established in 1913 by

northwestern tribes including the Samish Nation, petitioned the Department’s Office of Indian

Affairs on behalf of Indians in western Washington who had not received benefits under the

Stevens treaties.179 The Office of Indian Affairs agreed to carry out an enrollment of these

Indians, and assigned the work to special allotting agent Charles E. Roblin.180 From 1916 to

1919, Roblin set out to create a list of more than 4,000 “unattached” or off-reservation Indians in

western Washington and the Puget Sound region who were representative of “approximately 40

bands or tribes.”181 Roblin’s research materials listed sixteen individuals as “Samish,” “Part

Samish,” “Stick,” or “Nuwhaha,”182 but identified these individuals in his final report with a

different tribal affiliation.183 The Department has relied on similar lists of “unattached Indians”

176 Letter, Cato Sells, Commissioner of Indian Affairs to Dr. Chas. Buchanan and Mr. H. H. Johnson (Sept. 5, 1913).

177 See, e.g., Survey of Friday (Apr. 21, 1922) (Samish Indian living in Skagit County) (document found in Samish’s

OFA records); Survey of Jimmie Sampson (April 21, 1922) (Samish Indian living on public domain in Skagit

County) (document found in Samish’s OFA records); Greene Administrative Proceedings, App. B, ¶¶ 84–85 (some

people from the New Guemes House went back to Samish Island and others went to live in Anacortes, located in

Skagit County).

178 See also Cowlitz ROD 100 (describing extension of jurisdiction of Taholah Agency to Indians residing off-

reservation).

179 In 1929, the Tulalip Agency Farmer wrote to the Superintendent of the Tulalip Indian Agency that the Samish

were a part of the Northwest Federation of American Indians. Letter, Agency Farmer to Duclos (Apr. 6, 1929).

180 See Letter, E.B. Merrit to Otis O. Benson, Supt. Taholah Indian School (Nov. 17, 1919); Letter, Charles E.

Roblin, Special Allotting Agent to W.F. Dickens, Superintendent Tulalip (May 10, 1926).

181 Letter, E.B. Merrit to Otis O. Benson, Supt. Taholah Indian School (Nov. 17, 1919); see also letter from Charles

E. Roblin, Special Allotting Agent to W.F. Dickens, Superintendent Tulalip (May 10, 1926). (“In making these

schedules I tried to exclude ALL Indians who…[were] at that time listed on the census reports of ANY tribe in

Western Washington, and to include only unattached Indians who were on no census.”) (capitalization in original).

182 See supra, n.138.

183 While SITC asserts that Samish did not provide the Department with adequate information in the 1970s and 80s

to explain why Roblin had not used Samish or Stick Samish as separate categories, see Letter, Ziontz Chestnut to

BIA Northwest Regional Director Stanley M. Speaks at 17 (Mar. 9, 2016), I find that SITC did not provide the

Department with adequate information of why Roblin would have changed the tribal affiliation of those Samish

Indians who identified as such in their affidavits. Because there is not clear evidence to why he made these changes,

it is reasonable for us to rely on the affidavits as evidence of Samish members interacting with federal officials

during this time period.



of 32

in previously establishing that tribes lacking federal acknowledgment were nevertheless under

federal jurisdiction at the time.184

In the 1920s, Tulalip Agency officials repeatedly took actions demonstrating that they

considered the Samish to be under federal authority. In the early 1920s, for example, federal

officials inquired on behalf of the Samish Nation about obtaining an Indian burial ground on

Samish Island that was important to the Nation not only because it had been given to Harry Ite, a

chief of the Samish Indians on Samish Island, as a burial ground for the Indians in that district,

but also because there were about “two hundred of their members” buried there.185 In 1922,

federal officials visited the homes of Samish Indians living on the public domain as well as on

the Swinomish reservation to conduct a survey and documented information including their

living situation and occupation.186

In a letter to the Executive Secretary of the American Indian League in March 1927, the Tulalip

Agency Superintendent described the Indian tribes under his jurisdiction as the “Lummi,

Nooksack, Skagit, Suiattle, Sauk, Sammish, Swinomish, Snohomish, Snoqualmie, Muckleshoot,

Suquamish, D’Wamish, Clallam,” who are located “on the Lummi, Swinomish, Tulalip,

Muckleshoot and Port Madison Reservations, as well as on the public domain.”187

In 1929, the Superintendent of the Tulalip Agency provided Washington State officials with a

list of Indians by county who “should have special fishing privileges,” a list that included many

Samish Indians.188 In a separate communication to the Commissioner of Indian Affairs in the

same year, the Superintendent reported that the Samish were part of the “Swinomish

Subagency,” which itself was part of the Tulalip Agency.189 In 1929, Superintendent Duclos

informed the Commissioner of Indian Affairs that he had provided Samish Indians living off-

reservation in Anacortes “for a number of years” with groceries totaling $8.00 per month during

the winter and that he had assigned the “field nurse” to help them that winter to make sure “that

184 See Cowlitz ROD at 100–01.

185 Letter, Tulalip Indian Agency Superintendent to Commissioner of Indian Affairs (Oct. 11, 1920).

186 Superintendent Field Survey Notes from visits to allotted and non-allotted Indians (Friday, Jimmie Sampson,

John Lyons, and John Edge) from April 21–22, 1922. See also Cowlitz ROD at 102 (referencing 1937 Solicitor’s

Opinion concluding that Indians with homestead allotments on public domain eligible for IRA benefits).

187 Letter from Superintendent Tulalip Indian Agency to Rev. Wm. Brewster Humphrey (March 1, 1927). SITC

assert that this reference to the Samish “likely refers to the Samish located on the Swinomish Reservation”

(emphasis omitted). See Letter, Ziontz Chestnut to BIA Northwest Regional Director Stanley M. Speaks at 28 (Mar.

9, 2016). To support its argument, Swinomish points to other federal records in which the Samish are not

specifically enumerated as on the public domain. However sufficient evidence in the record demonstrates that a

number of Samish lived on the public domain.

188 Letter, Duclos to William Dunston, State of Washington (Jan. 29, 1929).

189 Letter, Aug. F. Duclos, Superintendent Tulalip Indian Agency to Commissioner of Indian Affairs (May 13,

1929). However, on November 21, 1929 Duclos wrote to Mr. W. David Owl, Missionary, Cattaraugus Reservation

that the Tulalip Agency had the following tribes under its jurisdiction: “Snohomish, Lummi, Swinomish,

Muckleshoot, Suquamish, Nooksack and Skagit Indians.” Nothing in the record explains why the Superintendent

omitted Samish from the list of tribes under his jurisdiction. Standing alone, the letter, which contradicts a letter sent

six months earlier, does not provide conclusive evidence that Samish were not under the agency’s jurisdiction.



of 32

they are properly cared for and will receive their rations regularly.”190 In 1931, Superintendent

Duclos informed the Commissioner about the will of Jim Charles, a “living un-allotted Sammish

Indian” of the Tulalip Indian Agency.191

Another further significant course of action by the federal government demonstrating that the

Nation was under federal jurisdiction from 1900 to 1934 are the Department’s approvals of the

Nation’s attorney contracts in 1925 and 1933. In 1925, federal agents assisted northwest

Washington tribes, including the Samish, to enter attorney contracts192 in order to bring claims

against the United States in the United States Court of Claims. The Act of May 21, 1872 required

all such contracts be approved by the Commissioner of Indian Affairs and the Secretary of the

Interior to be valid. Five “properly authorized [Samish] Indian delegates” who were “acting for

and on behalf” of the Samish Nation signed their attorney contract on December 17, 1925.193 On

May 31, 1933, Commissioner of Indian Affairs John Collier wrote to the Secretary of the Interior

confirming that attorney Arthur E. Griffin had a contract to represent “tribes of Indians in

Washington” including “Samish” to “pursue the litigation known as F-275 in the United States

Court of Claims.”194 The Secretary approved this second contract with the Samish in June

1933.195 The Department’s actions in approving the Samish’s attorney contracts in 1925 and

1933 support a finding that the Department considered the Nation a tribe subject to the statutory

requirement for Departmental supervision of attorney contracts, and thus “under federal

jurisdiction.” 196

190 Letter, Aug. F. Duclos to Commissioner of Indian Affairs (Mar. 16, 1929) (“During the summertime they are

usually over on the San Juan Islands where they pick berries and fish. During this time they are beyond our reach

and they really do not need any assistance. They spend their summers on the Islands regularly, in fact it is sort of a

summer home for them.”) When William McCluskey retired, the grocery deliveries ceased. Duclos told the

Commissioner, “I have visited these old people and talked to them and they appear to be very grateful for the

assistance given to them by the government.” Id.

191 Letter, Duclos to Commissioner of Indian Affairs (Nov. 4, 1931).

192 Attorney’s Contract approved by the United States between certain Indian tribes in the State of Washington and

Arthur E. Griffin, of Seattle Washington (December 17, 1925).

193 Id.

194 Letter, Commissioner of Indian Affairs John Collier to Secretary of the Interior Harold L. Ickes (May 31, 1933).

195 Attorney’s Contract approved by the United States between certain Indian tribes in the State of Washington and

Arthur E. Griffin, of Seattle Washington (June 9, 1933). Letter, Asst. Commissioner of Indian Affairs William

Zimmerman, Jr. to Secretary of the Interior Harold L. Ickes (Sept. 6, 1933) (describing contracts with “tribes of

Indians in Washington” including the “Samish”). The Court of Claims issued its decision on the Nation’s claims two

weeks before passage of the IRA. Duwamish, 79 Ct. Cl. 530. Duwamish held that the Samish Nation was a signatory

to the Treaty of Point Elliott and had existed as a separate, independent tribe. Duwamish, 79 Ct. Cl. at 580–81. The

court reaffirmed the federal government’s obligations to the Samish Nation under the Treaty of Point Elliott, noting

that the treaty included “numerous tribes and bands, some residing on treaty reservations and others on nontreaty

lands.” Duwamish, 79 Ct. Cl. at 612 (emphasis added). Though the court determined the Samish were owed

compensation totaling $3,500.00, it ultimately found the award offset by federal expenditures, and thus dismissed

the case. Duwamish, 79 Ct. Cl. at 538, 613.

196 See Cowlitz ROD at 103 (Departmental supervision of tribal attorney contracts as evidence that non-treaty tribe

was under federal jurisdiction in 1934). SITC argues that federal approval of a tribal attorney contract is not



of 32

The Department’s view that the Samish were under federal jurisdiction continued beyond 1933

and is reflected in its implementation of the IRA. In 1934, O.H. Lipps, Superintendent of the

Sacramento California Indian Agency, wrote a letter of recommendation to the Commissioner of

Indian Affairs on behalf of Don McDowell, acting secretary of the Samish Nation and president

of the Northwest Federation of American Indians, who worked on behalf of federal officials to

educate Northwest tribes about the IRA.197 Lipps recommended McDowell for appointment to a

supervisory position in the Indian Service, reporting that McDowell “[is] a member of the

Samish Indian tribe enrolled at the Tulalip agency.”198 McDowell worked with federal officials

to educate tribes about the IRA’s benefits and believed it would provide a means for the “Samish

Nation and Upper Skagit Band” to form an independent tribal government. Soon before passage

of the IRA, McDowell signed a resolution endorsing the Act in his capacity as “Acting

Secretary” of the Samish Nation.199 In acknowledging that resolution Commissioner Collier

stated “[w]e appreciate the favorable attitude as taken by your people on this important

legislation.”200 In December 1934, in anticipation of a visit to the Swinomish reservation by

Commissioner Collier, McDowell wrote to the Tulalip Superintendent of his further efforts to

organize IRA elections on the Swinomish and Lummi reservations as well as among the

Nooksack.201

2. After 1934

Although not directly relevant to the “under federal jurisdiction” inquiry, federal actions

occurring after 1934 demonstrate that federal officials continued to take actions in accordance

with the Department’s prior treatment of the Samish as being under federal authority. In 1938,

Tulalip Superintendent Upchurch wrote a general letter of recommendation for Mary McDowell,

daughter of Don McDowell, describing her as “an Indian of one-fourth blood of the Samish

Nation, Washington,” and that “although resident in the Tulalip Jurisdiction, none of the family

unequivocal evidence of jurisdiction status. See Letter, Ziontz Chestnut to BIA Northwest Reg. Dir. Stanley M.

Speaks at 56 (Mar. 9, 2016). However we rely on the attorney contracts in context of other evidence spanning

decades demonstrating continuing federal interactions with Samish tribal members.

197 Friday Report at 54–55. Superintendent O.C. Upchurch wrote in April 1934 that McDowell “has an intense desire

to do a social and economic missionary job among his people. He is a man of tact with industrial, supervisory, and

political experience, a good organizer and I am sure he will be able to make a real contribution to our service.” Id.

Furthermore, Upchurch added, McDowell had been “my most able assistant in selling the Wheeler-Howard plans to

the Northwest which is acceptable to most of the tribes.” Id.

198 Letter, O.H. Lipps, Superintendent, Sacramento Indian Agency to Commissioner of Indian Affairs John Collier

(Apr. 30, 1934). Lipps explained that he had come to know McDowell when the latter was a student at the Carlisle

Indian School. There, according to Lipps, McDowell showed “his more than ordinary desire to acquire an education

and training, and by the qualities of leadership he displayed in the various student activities in which he

participated…He is one of the outstanding, progressive Indians of the Pacific Northwest.” Id.

199 See Letter, Commissioner of Indian Affairs John Collier to Don McDowell (n.d., c. 1934) (regarding resolution

endorsing the Wheeler-Howard Indian Self-Government Plan).

200 Id.

201 Letter, Don McDowell to O.C. Upchurch (Dec. 7, 1934).



of 32

has been allotted on any of our Reservations.”202 Over the next several years, other Samish

would write to Upchurch about such issues as home loans and inheritance. Upchurch continued

to recognize his responsibility to, and jurisdiction over, these individuals.203

In the 1950s, the Samish Nation again sought to bring claims against the United States and again

had the Nation’s attorney contract approved by the Department, as it had in 1926 and 1933.204 In

1958, the Indian Claims Commission held that the Samish Nation was an Indian entity that had

continuously existed as a recognized group by the federal government, and affirmed that the

Samish Nation was party to the Point Elliott Treaty.205 The court concluded that the Samish

Nation “has shown itself to be the descendants and successors in interest of the Samish Indians

of aboriginal times.”206

During the 1950s, federal officials continued to report the Samish Nation under their jurisdiction.

In 1951, in response to a Congressional request for the “names of tribes serviced through your

agency” forwarded to him by the Information Officer for the Commissioner of Indian Affairs,

the Western Washington Agency Superintendent included Samish on a list of “Indian Tribes

(members not enrolled) to whom this office extends services,” noting that the Samish had some

700 members and was the largest such group.207 In 1953, the Superintendent invited Samish

Tribal Council Secretary Mary McDowell to meet the Commissioner of Indian Affairs during his

visit to Seattle on the basis that the Samish Nation was one of “the tribes under the jurisdiction of

the Western Washington Indian Agency.”208 The Commissioner of Indian Affairs later wrote to

McDowell, thanking the “Samish Indian Tribe” for meeting with him.209 In 1955, the Western

Washington Agency again listed Samish as a “landless” tribe under its jurisdiction.210 In 1963

202 Letter, O.C. Upchurch to Whom Concerned (Jun. 8, 1938) (emphasis added).

203 See Letter. Margaret Cagey Brown to O.C. Upchurch (Sep. 19, 1940); Letter, O.C. Upchurch to Margaret Cagey

Brown [Marietta] (Sep. 23, 1940); Summary of Report on Heirs, Estate of Joseph Cagey (Feb. 29, 1940).

204 See Letter, Superintendent, Western Washington Indian Agency, to Alfred Edwards (Oct. 12, 1956); Letter,

Acting Superintendent Schmartz, Western Washington Indian Agency, to Don Foster, Area Director, Portland,

Oregon (November 30, 1956).

205 Samish Nation of Indians, 6 Ind. Cl. Comm. at 170–71.

206 Id. at 172.

207 Letter, M.M. Tozier to Raymond H. Bitney (Oct. 11, 1951); Letter, Raymond H. Bitney to M.M. Tozier,

Information Officer, Commissioner of Indian Affairs, Washington D.C. (Oct. 12, 1951). See, e.g., Report of

Raymond H. Bitney, Superintendent of Western Washington Indian Agency to Commissioner of Indian Affairs

(Oct. 12, 1951) (identifying numerous Indian tribes, including Samish, as having members not enrolled and which

are extended services by the agency).

208 Letter, Raymond H. Bitney to Mary McDowell, Secretary, Samish Tribal Council (Sep. 30, 1953) (Bitney also

told McDowell that the Commissioner would meet all the tribes as a whole and then hold “individual meetings with

the representatives of each group”).

209 Letter, Glenn Emmons, Commissioner of Indian Affairs to Mary McDowell Hansen, Secretary/Treasurer, Samish

Indian Tribe (Jan. 12, 1954).

210 Letter, Melvin L. Robertson to R.J. Wilson [New York] (Mar. 24, 1955).



of 32

and 1964, Western Washington Agency officials met repeatedly with the Samish Nation and

welcomed tribal representatives while conducting research on tribal enrollment issues.211

Also, in the 1950s, the Department implemented the decision in Tulee v. Washington, 315 U.S.

681 (1942), which upheld the right of Washington treaty tribes to fish without the need for their

members to apply for state licenses, by issuing so-called “blue cards” to eligible Indians, which

included Samish Indians as “enrolled member[s] of the Samish Nation” on records of the

Western Washington Indian Agency.212

I note that the record contains some evidence demonstrating that officials occasionally omitted

the Samish from lists of Indian tribes within federal jurisdiction, or misidentified individual

Samish as members of other tribes. For example, in 1938, the Tulalip Agency Superintendent

wrote that there were nine distinct tribes under his jurisdiction, but did not include Samish.213

There is no explanation of the Superintendent’s position, which is inconsistent with his earlier

statements that there were “16 tribes under jurisdiction of Tulalip”214 and with his provision of

assistance to individual Samish Indians. Such inconsistencies are not uncommon, and do not in

themselves demonstrate that the Samish Nation was not under federal jurisdiction.215 I am aware

of no evidence demonstrating that federal officials affirmatively disclaimed federal jurisdiction

over the Samish before about 1971.216 Even if there were, however, evidence of executive

officials disavowing legal responsibility in certain instances that cannot, by itself, revoke

jurisdiction absent express congressional action.217 As the Solicitor has explained, the absence of

probative evidence that a tribe’s jurisdictional status was terminated or lost before 1934 strongly

suggests that such status was retained in 1934.218 The administrative actions or inactions of the

211 Samish Tribal Council Minutes, September 29, 1963 (At the meeting, Jess Town, Tribal Operations Office for

the Western Washing Indian Agency, BIA told the Samish Nation that its “by-laws have been accepted by the

Secretary of the Interior as an operating document, but not approved because we are not a reservation tribe.” He also

pledged that if the tribe “will let the agency know when meetings are to be held, an agency representative will

attend…to discuss hunting and fishing problems.”).

212 See, e.g., Letter, Raymond Bitney, Superintendent of Western Washington Indian Agency to Frank Wilson (Sep.

2, 1953) (“In accordance with your request, we are enclosing card which certifies that you are an enrolled member

of the Samish Nation, according to the records of this agency”).

213 Letter, O.C. Upchurch to Mr. George L. Harris (Mar. 7, 1938).

214 Letter, O.C. Upchurch to Department of Labor (Feb. 27, 1934).

215 SITC suggests that documents that do not mention Samish provide evidence that Samish were not under federal

jurisdiction in 1934. See Letter, Ziontz Chestnut to BIA Northwest Reg. Dir. Stanley M. Speaks (Mar. 9, 2016).

However the absence of evidence does not necessarily indicate evidence of absence.

216 See Greene Administrative Proceedings, App. B, ¶ 110 (describing first official disclaimers of recognized status).

217 Sol. Op. M-37029 at 20, n.123, citing United States v. John, 437 U.S. 634, 653 (1978).

218 Id.



of 32

Department could not legally terminate the federal relationship with the Samish.219 The

Department has stated before that neither federal denials of requests for assistance, nor

occasional misstatements from government officials results in the repudiation of federal

jurisdiction.220 In addition, misstatements by Department officials do not by themselves

terminate federal jurisdiction over a tribe.221

IV. CONCLUSION

Based on the record as a whole, I conclude that the Samish Nation satisfies both steps of the

“under federal jurisdiction” inquiry established by Sol. Op. M-37029. The record demonstrates

that the Nation’s ancestors were first recognized and brought under federal jurisdiction when the

United States negotiated and entered the Treaty of Point Elliott with the Samish. From 1855

through 1934, there is no evidence demonstrating that the United States ever terminated the

Samish’s recognized status. In the years following the Treaty, the federal government treated the

Samish as a federally recognized tribe, during which time federal officials continued a course of

dealings with the Nation and its members on and off the reservations established by the Treaty.

These included efforts at relocating the Samish to Treaty reservations; issuing homestead

allotments to Samish Indians; exercising authority over Samish activities; and recording Samish

Indians on lists of Indians under the authority of federal Indian agencies in Washington State.

The United States Court of Appeals for the District of Columbia Circuit addressed the degree of

a relationship between an Indian tribe and the United States government that is required to be

considered “under federal jurisdiction” for purposes of the IRA. In Confederated Tribes of the

Grand Ronde Community of Oregon v. Jewell, the federal appeals court found that given “a large

and complex record of Interior interactions with the Cowlitz for almost a century” the Secretary

reasonably determined that the tribe in that case satisfied the two-part test, discussed above.222

Significantly, the court opined that:

Whether the government acknowledged federal responsibilities toward a tribe through a

specialized, political relationship is a different question from whether those

responsibilities in fact existed. And as the Secretary explained, we can understand the

existence of such responsibilities sometimes from one federal action that in and of itself

will be sufficient, and at other times from a “variety of actions when viewed in concert.”

Such contextual analysis takes into account the diversity of kinds of evidence a tribe

might be able to produce, as well as evolving agency practice in administering Indian

219 See Sol. Op. M-37029 at 20 n.122 (citing Felix S. Cohen, HANDBOOK OF FEDERAL INDIAN LAW § 4.01[1]). See

also United States v. Long, 324 F.3d 475, 479–80 (7th Cir. 2003); Harjo v. Kleppe, 420 F. Supp. 1110 (D.D.C.

1976), aff’d sub nom. Harjo v. Andrus, 581 F.2d 949 (D.C. Cir. 1978).

220 See Cowlitz ROD at 95.

221 See generally Carcieri, 555 U.S. at 397–98 (Breyer, J., concurring) (recognizing that a tribe may have been under

federal jurisdiction in 1934 even though the Federal Government did not believe so at the time).

222 Cowlitz, 830 F.3d at 566.



of 32

affairs and implementing the statute. It is a reasonable one in light of the remedial

purposes of the IRA and applicable canons of statutory construction.223

As in Grand Ronde, the Samish maintained a relationship with the United States through a wide

variety of actions. This government-to-government relationship persisted from the late

nineteenth-century to 1934, and beyond. Contrary to SITC’s assertions, even if the Department

did not consistently view the Samish as being under its supervision, other historical facts and

interactions with the United States demonstrate that such federal jurisdiction over the Samish

remained intact.

Irrespective of whether a formal government-to-government relationship existed in 1934, the

evidence plainly shows that federal officials considered the Samish and its members under

federal authority. From 1900 through 1934, officials at the local and national level continued to

take actions that reflect a course of dealings demonstrating that Federal officials considered the

Samish Indians as under federal authority. These actions include federal officials managing and

issuing reservation allotments to Samish; expanding federal jurisdiction to Samish Indians living

off-reservations; taking surveys and notes of off-reservation Samish; inquiring on behalf of

Samish to obtain a Samish burial ground; expressly describing the Samish as being “under

federal “jurisdiction”; approving attorney contracts for the Samish Nation pursuant to federal

statutes requiring the same; using federal funds to buy groceries for elderly Samish Indians; and

providing medical services to Samish Indians living off-reservation. These actions reflect a

course of dealings for or on behalf of the Samish Nation and its members that establish federal

obligations, duties, responsibility for, and authority over the Samish Nation by the federal

government. Viewed in context, these actions plainly reflect a course of dealings for or on behalf

of the Samish Nation and its members that establish federal obligations, duties, responsibility for,

and authority over the Samish Nation by the federal government. For these reasons I conclude

that Samish was under federal jurisdiction in 1934.

223 Id. at 565 (record citations omitted).

attachment 1: nw regional director’s analysis of … · attachment 1: nw regional director’s...

Documents